1. With the agreement of the respondent, the Tribunal finds Allegation 1 and Allegation 2 proved, and in each case finds that the respondent has engaged in professional misconduct within the meaning of paragraph (a) of the definition of professional misconduct in section 5 of the Health Practitioner Regulation National Law (Victoria) (National Law).

1. The respondent is reprimanded, under section 196(2)(a) of the National Law.
2. The respondent's registration is suspended for four months, from 30 April 2025, under section 196(2)(d) of the National Law.
3. The conditions set out in Annexure A to these orders are imposed on the respondent's registration, under section 196(2)(b) of the National Law.

Order under s 80 of the VCAT Act (made on 6 May 2025)

1. Under s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), (VCAT Act) the name of the respondent is anonymised to 'ZQO'. The principal registrar is directed to amend the register accordingly.

1. The Practitioner must only take substances prescribed, approved, or administered by a nominated treating practitioner(s) and such nominated treating practitioner(s) must not be a relative, friend, professional colleague or in a contractual or financial relationship with the Practitioner.
2. For the purposes of this condition 'substance' is defined as any illicit substance as well as any prescription only and any controlled drug medication as contained in Schedule 4 or 8 in the Standard for the Uniform Scheduling of Medications and Poisons (the SUSMP) as amended from time to time and as published at https://www.tga.gov.au/publication/poisons-standard-susmp.
3. At least 28 days prior to the Practitioner's return to practise, the Practitioner must commence random urine drug screening (UDS) and hair analysis for drug screening (hair analysis) in accordance with Ahpra's protocol for UDS and hair analysis (the protocol) in force at the date these conditions are imposed and then as amended from time to time.
4. The Practitioner must commence UDS and hair analysis at Group Two frequency or as otherwise advised by Ahpra and must continue to attend at this frequency until the Board approves otherwise.
5. At least 28 days prior to the Practitioner's return to practise, the Practitioner must provide to Ahpra:
   1. Confirmation, on the approved form (HPF6), that they understand the requirements of the protocol as it pertains to urine and hair drug screening and they are aware of Ahpra's monitoring of this condition.
   2. The details, on the approved form (HPF6), of all current substances that have been prescribed or administered to or approved for them, along with the contact information of all prescribing practitioners who have, or are likely to, prescribe, approve or administer substances.

1. The Practitioner must undertake treatment with a General Practitioner and Psychologist/Psychiatrist (the treating practitioners) and attend at a frequency determined by the treating practitioners).
2. At least 28 days prior to the Practitioner's return to practise the Practitioner must provide the following to Ahpra:
   1. The contact details, on the approved form (HPF3), of all treating practitioners.
   2. Acknowledgement, on the approved form (HPF3), from the Practitioner that Ahpra may seek reports from the treating practitioner(s) on a monthly basis.
   3. Confirmation, on the approved form (HPNA3), from the treating practitioner(s) that they have seen a copy of the conditions on the Practitioner's registration and are aware Ahpra may contact them to seek reports.

1. The Practitioner must not practise between 11:00 pm and 6:30 am until the Board approves otherwise.
2. At least 28 days prior to the Practitioner's return to practise, the Practitioner must provide to Ahpra, on the approved form (HP7), acknowledgement that Ahpra may:
   1. Seek reports from the Director of Nursing/Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/ /other as appropriate (the senior person) at each place of practice on at least a monthly basis or as otherwise required.
   2. Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
   3. Have contact with and access information from, where relevant, Medicare, private health insurers and/or practice billing data.
3. At least 28 days prior to the Practitioner's return to practise, the Practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practise that they are aware Ahpra will seek reports from them.

1. The Practitioner must not prescribe/possess/supply/administer/handle/dispense/access/check (hereafter referred to as access), the following substance(s): any medication listed as an 'opioid analgesic' in the Australian Medicines Handbook unless prescribed, approved, or administered for ZQO's own use by her treating practitioner(s).
2. At least 28 days prior to the Practitioner's return to practise, the Practitioner must provide to Ahpra:
   1. Acknowledgement, on the approved form (HP1), that Ahpra may obtain reports from the Director of Nursing/Senior Practice Manager/Senior Manager/Senior Partner/proprietor/owner/ /other as appropriate (a senior person) at each and every place of practice on a monthly basis or as otherwise required by Ahpra.
   2. Acknowledgement, on the approved form (HP1), that for the purposes of monitoring compliance with the conditions on their registration restricting access to medications, Ahpra may contact Medicare and/or drugs and poisons regulatory authorities in relevant states or territories.
   3. Confirmation, on the approved form (HPS1), from the senior person at each place of practice that they are aware Ahpra will seek reports from them.

1. Upon returning to practise, The Practitioner must be mentored by another registered health practitioner in relation to maintaining professional standards of practise within the context of managing ethical and/or personal and/or professional challenges.
2. For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.
3. The mentoring must comprise a minimum of 6 sessions with each session being of 1 hour duration occurring over a 6 month period.
4. At least 28 days prior to the Practitioner's return to practise, the Practitioner must, on the approved form (HPN16), nominate a person(s) to be approved by the Board to act as mentor. The Practitioner must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.
5. At least 28 days prior to the Practitioner's return to practise, the Practitioner must provide to Ahpra, on the approved form (HP16), acknowledgement that Ahpra may seek reports from the approved mentor on any or all of the following occasions:
   1. every month;
   2. at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
   3. whenever the mentor has a concern or becomes aware of a concern regarding the Practitioner's conduct or professional performance, and
   4. when otherwise requested by Ahpra.
6. In the event an approved mentor is no longer willing or able to provide the mentoring required the Practitioner is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the Practitioner within 21 days of becoming aware of the termination of the mentoring relationship.
7. Within 28 days of the conclusion of the mentoring the Practitioner must provide a report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to the condition requiring they attend for mentoring and outlining how the Practitioner has incorporated the lessons learnt in the mentoring into their practise.

1. Within 21 days of the notice of the imposition of these conditions, the Practitioner must provide to Ahpra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the Practitioner's registration or confirm that the senior person has received a copy of the conditions from the Practitioner. The practitioner will be required to provide the same form:
   1. within seven days of the commencement of practice at each subsequent place of practice, and
   2. within seven days of each and every notice of any subsequent alteration of these conditions.
2. All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.

1. The review period of the conditions is 12 months.

1. This case is about the admitted conduct of the respondent in late 2019 and early 2020, when she was working as an enrolled nurse,[1] in:
   • misappropriating Schedule 4 drugs of dependence from the hospital where she worked; and then
   • making misleading statements to her employer and to the Australian Health Practitioner Regulation Agency (Ahpra) in their subsequent investigations.
2. In February 2020, the respondent gave an undertaking not to practise, accepted by the Nursing and Midwifery Board of Australia (Board) in an immediate action process, and has not worked as a nurse since that time.
3. In November 2023, the Board referred two allegations to VCAT under the Health Practitioner Regulation National Law (Victoria) (National Law).
4. The allegations are:
   • Allegation 1: on or around 20 December 2019 and 24 December 2019, the respondent misappropriated Schedule 4 drugs of dependence, namely 30 tablets of Tramadol IR 50mg, six tablets of Tramadol SR 200mg, 10 tablets of Tramadol SR 100mg and one tablet of Panadeine Forte (codeine); and
   • Allegation 2: between 24 December 2019 and 28 January 2020, the respondent provided false or misleading information to her employer and/or Ahpra/the Board in relation to their investigations into her conduct.
5. In this case agreement was reached between the Board and the respondent ahead of the hearing. They gave us an Agreed Statement of Facts, Findings and Determinations (Agreed Statement), under which the respondent admitted the conduct, and agreed with the Board about the characterisation of the conduct and the proposed determinations (consequential orders). Each provided uncontentious and helpful submissions.
6. They jointly proposed that we find the allegations proved; characterise the conduct as professional misconduct under paragraph (a) of the definition in s 5 of the National Law;[2] and make orders by way of determinations that:

(a) the respondent be reprimanded;

(b) her registration be suspended for four months; and

(c) conditions be imposed on her registration that, in essence:

1. require her to commence random urine and hair drug screening before returning to work as a nurse;
2. limit her practice hours for a period;
3. prohibit access to or handling of opioid analgesics other than those prescribed for her own use;
4. require her to attend treating practitioners and be mentored; and
5. require her to provide the contact details of a senior person at each place of work.

1. The conditions are set out in full in Annexure A to our orders.
2. Subject to one change to the condition about hours of work, agreed to by the parties at the hearing, we were satisfied that the proposed outcome negotiated between the parties was appropriate in the circumstances, and made the findings and determinations sought.
3. We were satisfied that the determinations met the well-established requirements of such orders in professional disciplinary proceedings, discussed later.
4. In particular the conditions, which can be reviewed after 12 months, provide a supported pathway for a safe return to practice by the respondent after so long away from the profession of nursing. They reflect, in our view, a considered and nuanced approach by the parties to the particular circumstances of this case.
5. Those circumstances include the personal, medical, and complex psychological history of the respondent, which in turn includes complex trauma related to childhood sexual assault by a close family member; subsequent eating disorders; depression; and an attempted suicide in 2013 by crashing her car into a pole at high speed, which left her with serious injuries and chronic pain. The chronic pain, in turn, appears to have led to a substance use disorder.
6. Because of that history, which is relevant to the conditions imposed, as well as a continuing risk of self-harm evident from the materials before us, we made an anonymity order (sometimes called a pseudonym order) [3] directing that she be referred to in these proceedings and in this decision as ZQO. We made the order for her safety, with the agreement of the respondent, and without opposition by the Board.
7. An earlier order closed the file to inspection by anyone other than the parties or their legal representatives.
8. Both orders were made under the Victorian Civil and Administrative Tribunal Act 1998 (Vic): the anonymity order under s 80(1),[4] and the closed file order under s 146(4).
9. We observe at the outset that what is also evident to us, however, is ZQO's courage and strength in:
   • surviving the personal challenges she has faced;
   • recognising how badly things went wrong in 2019 and 2020 (she had no prior disciplinary history and had worked without incident since qualifying as an enrolled nurse in 2008), and how far below professional standards her conduct fell;
   • remaining engaged, with the assistance of her legal representatives, throughout the Board's investigation and these proceedings over the five years it has taken to arrive at a hearing; and
   • looking to return to her profession, with some necessary safeguards in place.
10. We set out next the relevant facts from the Agreed Statement that formed the basis of our findings that the allegations were proved to the required standard, which is the civil standard of 'balance of probabilities', nevertheless keeping in mind the well-known Briginshaw principles.[5]

(a) held registration as both an enrolled nurse and registered nurse but was practising and employed as an enrolled nurse at St John of God Geelong Hospital (St John);

(b) was a registered health practitioner under the National Law; and

(c) was required to comply with the:

1. Code of Professional Conduct for Nurses in Australia (effective 1 March 2018) (Code of Conduct);
2. International Council of Nurses Code of Ethics for Nurses (ICN Code of Ethics) (adopted by the Board on 1 March 2018);
3. Enrolled Nurse Standards of Practice (effective 1 January 2016);
4. Registered Nurse Standards of Practice (effective 1 June 2016);

(d) Drugs, Poisons and Controlled Substances Regulations 2017 (Vic) (Drugs Regulations); and

(e) the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (Drugs Act).

Allegation 1: Misappropriation of Schedule 4 drugs of dependence

(a) ZQO was not rostered on duty, however arrived at St John at approximately 10:58 am in full uniform;

(b) CCTV footage shows that:

1. at 12:13 pm ZQO sat at the Level 2 North West Reception desk of Ward 2 East for some time. ZQO then looked through her handbag and touched her trouser pockets twice which appeared to be empty due to them lying flat and when standing displaying no discernible bulge nor having anything visible from the entry to the pocket;
2. at 12:15 pm, ZQO entered the Level 2 North West Medication Room (Level 2 NW Medication Room) and remained in the Level 2 NW Medication Room for 1 minute and 44 seconds;
3. ZQO exited the Level 2 NW Medication Room with a white box-shaped object visible in her right trouser pocket, and a discernible square bulge;

(c) At 2:51 pm, the Associate Nurse Unit Manager reported that the following medications were unaccounted for:

1. 16 Tramadol IR 50mg tablets of ward stock;
2. 6 Tramadol SR 200mg of patient stock;
3. 10 Tramadol SR 100mg of patient stock; and
4. 1 Panadeine Forte of patient stock.

1. ZQO was not rostered to work on 20 December 2019 and did not claim payment for her attendance. Therefore, there was no requirement for her to access the Level 2 NW Medication Room on 20 December 2019 as part of her duties.
2. On 24 December 2019:

(a) ZQO was rostered to work in Ward 3 North for a shift between 7:00 am and 3:00 pm;

(b) at 6:39 am, before ZQO's rostered shift, ZQO swiped her access card to enter the Level 2 NW Medication Room. ZQO was in the Level 2 NW Medication Room for 2 minutes and 10 seconds; and

(c) at approximately 7:00 am, the Nurse Unit Manager reported that 14 Tramadol IR 50mg tablets of ward stock were unaccounted for.

1. Tramadol and Panadeine Forte (in the strengths/formulations identified) are both Schedule 4 poisons under the Poisons Standard within the meaning of the Therapeutic Goods Act 1989 (Cth).
2. ZQO's registration as an enrolled nurse included the notation that she did not hold a Board approved qualification in medicines administration.
3. ZQO, as a registered nurse, is authorised under regulation 8(1) of the Drugs Regulations to possess Schedule 4 poisons that are necessary for administration to a patient under instructions from a registered medical practitioner, a dentist, a nurse practitioner or an authorised midwife.
4. By engaging in the conduct particularised above, ZQO acted contrary to:

(a) the notation on her enrolled nurse registration in that she did not hold a Board approved qualification in medicines administration; and

(b) the authority granted to her under regulation 8(1) by virtue of her registration as a registered nurse, and contrary to the Drugs Act, specifically section 36B(2) of the of the Drugs Act, which states that a person shall not have in their possession a Schedule 4 poison unless they are authorised by or licensed under the Drugs Act or the regulations to do so.

1. By engaging in the above conduct, ZQO acted inconsistently with the following provisions of the Code of Conduct, ICN Code of Ethics, the Enrolled Nurse Standards of Practice and/or the Registered Nurse Standards of Practice:

Code of Conduct:

1.2 Lawful behaviour

Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession. Nurses must...

1. comply with relevant poisons legislation, authorisation, local policy and own scope of practice, including to safely use, administer, obtain, possess, prescribe, sell, supply and store medications and other therapeutic products; and
2. not participate in unlawful behaviour and understand that unlawful behaviour may be viewed as unprofessional conduct or professional misconduct and have implications for their registration...

2.1 Nursing practice

Nurses must... practise in accordance with the standards of the profession and broader health system (including the NMBA standards, codes and guidelines, the Australian Commission on Safety and Quality in Health Care and Standards for aged care).

ICN Code of Ethics:

Standard 1: Nurses and people

The nurse demonstrates professional values such [...] trustworthiness and integrity.

Standard 2: Nurses and practice

The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence.

The nurse strives to foster and maintain a practice culture promoting ethical behaviour and open dialogue.

Standard 3: Nurses and the profession

The nurse is active in developing and sustaining a core of professional values.

The nurse contributes to an ethical organisational environment and challenges unethical practices and settings.

Enrolled Nurse Standards of Practice:

Standard 1: Functions in accordance with the law, policies and procedures affecting EN practice

Indicators:

• 1.1 Demonstrates knowledge and understanding of commonwealth, state and /or territory legislation and common law pertinent to nursing practice...

• 1.2 Demonstrates knowledge of and implications for the NMBA standards, codes and guidelines, workplace policies and procedural guidelines applicable to enrolled nursing practice.

Registered Nurse Standards of Practice:

Standard 1: Thinks critically and analyses nursing practice

Indicators:

1.4 Complies with legislation, regulations, policies, guidelines and other standards or requirements relevant to the context of practice when making decisions.

Standard 6: Provides safe, appropriate and responsive quality nursing practice

Indicators:

6.5 Practises in accordance with relevant policies, guidelines, standards, regulations and legislation.

Principle 4: Professional behaviour

Value: Nurses embody integrity, honesty, respect and compassion.

Allegation 2: Misleading statements to employer and Ahpra

1. On 24 December 2019 at 3.45pm following discovery of the conduct above (the Conduct), a meeting was held between [names redacted] of St John and ZQO about the Conduct. During that meeting, ZQO denied the Conduct, stating amongst other things that:

(a) 'I haven't taken any drugs';

(b) she entered the Level 2 NW Medication Room on 24 December 2019 to get a band aid; and

(c) she attended St John on 20 December 2019 to 'get a reference from a 2 North staff member, but the staff member wasn't there.'

1. On 3 January 2020, St John wrote to ZQO by email and letter providing her with an opportunity to respond to allegations about the Conduct (Allegations Letter).
2. ZQO responded to the Allegations Letter on 6 January 2020 denying that she engaged in the Conduct, stating amongst other things that:

(a) 'At 12:13 I went into the Level 2 North West Medication Room of Ward 2 East I do not recall exactly why but it is likely I was looking for MIMS book.';

(b) 'I am not sure what the white box in my pocket was however it is possible it was a box of Panadol or Nurofen or DermAid, which I had brought with me.';

(c) 'I went to the Level 2 North West Medication Room on Ward 2 East at 06:39 to get a band aid for my toe.'; and

(d) 'I went back to Level 2 North West Medication Room on Ward 2 East to get another band aid.'.

1. By letter and email dated 8 January 2020, St John concluded that the allegation in relation to the conduct on 20 December 2019 was substantiated. ZQO was provided an opportunity to provide St to John any further information that should be considered in determining the appropriate disciplinary outcome (Show Cause Notice).
2. In response to the Show Cause Notice, on 12 January 2020 ZQO again denied that she stole medication and states amongst other things that:

(a) 'I have and would never steal.'; and

(b) 'I was checking my pockets for my swipe card, which often can become detached from my uniform. It is possible that the object in my pocket shifted up while walking from before and after entering the Level 2 North West Medication Room of Ward 2 east, making it visible upon exiting the medication room.'.

1. On 2 January 2020, Ahpra received a notification from a confidential notifier in relation to the Conduct.
2. On 16 January 2020, an Ahpra investigation officer contacted ZQO by phone, advising her that Ahpra had received a notification regarding her conduct. ZQO denied the Conduct, stating words to the effect that:

(a) she maintained her innocence;

(b) St John had withdrawn two of the allegations they initially made against her. However, they did find one was substantiated, mostly due to the fact that CCTV footage showed her with something looking like medication in her pocket; and

(c) she always has things in her pocket.

1. On 28 January 2020, an Ahpra investigation officer contacted ZQO by phone. ZQO again denied the Conduct stating words to the effect that she was innocent and did not know how else to prove her innocence.
2. The above statements were not true.
3. On 18 March 2020, during a psychiatric examination with Dr Peter G Smith requested by the Board, ZQO admitted that she misappropriated medication in December 2019, including on 24 December 2019.
4. On 26 July 2021, in an interview with an Ahpra investigator:

(a) In response to the investigator's question 'Do you accept that you misappropriated medication on the 20 December 2019 as alleged?', ZQO replied 'Yes I do.'

(b) In relation the Conduct on 20 December 2019, ZQO states 'The door [of the cupboard] was already open and I opened it and the medication obviously fell down [...] I literally just took it and put it in my pocket, um, felt disgusted with myself but that's, that's what I did.'

(c) In response to the investigator's prompt 'You did provide a response that was inconsistent with what you're saying now.' ZQO replied 'Yes.'

1. By engaging in the conduct particularised ZQO acted inconsistently with the following provisions of the Code of Conduct, ICN Code of Ethics, the Enrolled Nurse Standards of Practice and/or the Registered Nurse Standards of Practice:

Code of Conduct:

1.2 Lawful behaviour

Nurses practise honestly and ethically and should not engage in unlawful behaviour as it may affect their practice and/or damage the reputation of the profession...

2.1 Nursing practice

Nurses must ... practise in accordance with the standards of the profession and broader health system (including the NMBA standards, codes and guidelines, the Australian Commission on Safety and Quality in Health Care and Standards for aged care).

ICN Code of Ethics:

Standard 1: Nurses and people

The nurse demonstrates professional values such [...] trustworthiness and integrity.

Standard 2: Nurses and practice

The nurse carries personal responsibility and accountability for nursing practice [...].

The nurse at all times maintains standards of personal conduct which reflect well on the profession and enhance its image and public confidence.

The nurse strives to foster and maintain a practice culture promoting ethical behaviour and open dialogue.

Standard 3: Nurses and the profession

The nurse is active in developing and sustaining a core of professional values.

The nurse contributes to an ethical organisational environment and challenges unethical practices and settings.

The Enrolled Nurse Standards for Practice:

Standard 1: Functions in accordance with the law, policies and procedures affecting EN practice

Indicators:

1.3 Demonstrates knowledge of and implications for the NMBA standards, codes and guidelines, workplace policies and procedural guidelines applicable to enrolled nursing practice.

Standard 3: Accepts accountability and responsibility for own actions.

Indicators:

3.2 Demonstrates responsibility and accountability for nursing care provided...

The Registered Nurse Standards for Practice:

Standard 3: Maintains the capability for practice

Indicators:

3.4 Accepts accountability for decisions, actions, behaviours and responsibilities inherent in their role [...]

Standard 6: Provides safe, appropriate and responsive quality nursing practice

Indicators:

6.5 Practises in accordance with relevant policies, guidelines, standards, regulations and legislation.

Principle 4: Professional behaviour

Value: Nurses embody integrity, honesty, respect and compassion.

1. The parties agreed that the conduct in Allegation 1 and Allegation 2 constitutes professional misconduct under paragraph (a) of the definition in s 5 of the National Law:

(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; ...

1. In both instances the conduct contravened the Code of Conduct, ICN Code of Ethics, the Enrolled Nurse Standards of Practice and/or the Registered Nurse Standards of Practice.
2. In the case of Allegation 1, the conduct breached the trust placed in nurses that they will not unlawfully access medications.
3. Fortunately, in this case, the systems in place meant that the medications were reported unaccounted for on the same day they were taken. And, although they were not recovered there is no suggestion that ZQO passed them onto anyone else. Nor was this a case where the health practitioner has appropriated medicines that had already been dispensed to patients by the hospital pharmacist but not yet taken,[7] thus depriving them of the required dose.
4. In the case of the conduct the subject of Allegation 2, the conduct was in clear breach of ZQO's professional obligation of honesty and ethical conduct.
5. Fortunately, it did not misdirect the hospital investigation, in part because CCTV and other hospital records established that ZQO had accessed the medication room without any reason or authority to do so. Nor did it significantly delay its conclusion on 8 January 2020, with a finding that the conduct was substantiated. But it should not have happened.
6. As to the Ahpra investigation, it was certainly in breach of her professional and ethical obligations to give misleading information to Ahpra. By 23 March 2020, however, Ahpra had received Dr Peter Smith's report of the psychiatric examination and assessment he conducted. The report included the information that ZQO admitted that she had misappropriated medications.
7. Cases where similar conduct has come within paragraph (a) of the definition are, as submitted by the Board:
   • Nursing and Midwifery Board of Australia v Mahon [2014] VCAT 403; and
   • Nursing and Midwifery Board of Australia v Harrison [2022] VCAT 177.
8. We agree with the parties that the conduct in each case is appropriately characterised as professional misconduct under paragraph (a) of the definition, and make that finding.

1. The parties jointly invited the Tribunal to make the following determinations under section 196(2) of the National Law:

(a) ZQO be reprimanded under section 196(2)(a) of the National Law;

(b) ZQO's registration be suspended for four months under section 196(2)(d) of the National Law; and

(c) conditions be imposed on ZQO's registration under section 196(2)(b) of the National Law as outlined in Annexure A of the Agreed Statement.

The principles applicable to determinations under the National Law

1. The applicable principles are well-established from the cases.[8] The primary purpose of determinations is to protect the public, not to punish the practitioner, although the orders may well feel punitive to the practitioner.
2. That primary purpose, together with protection of the reputation of the nursing profession in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained, and there are consequences for those who fail to do so.
3. An essential component of protection of the public is deterring the practitioner from repeating the conduct, and deterring other practitioners from engaging in it.
4. As the Tribunal observed in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 (Honey) at [16]:

Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

1. With that protective focus in mind, the Tribunal considers a range of factors including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence. Personal matters such as shame, personal ordeal and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner.
2. In considering the importance of specific deterrence in any case - whether there is a need to deter the individual practitioner from repeating the conduct - the Tribunal assesses any ongoing risk posed by the practitioner taking into account factors such as:
   • whether they have demonstrated insight into the seriousness of the conduct and how and why it occurred;
   • whether they have shown genuine remorse and have taken independent steps to reduce the risk of repetition; and
   • whether they have any past disciplinary history, which in turn may suggest that stronger penalties may be required to deter them in future.[9]
3. In considering the importance of general deterrence, the Tribunal looks at:
   • the nature and seriousness of the conduct and the risk it poses to the public if engaged in by others; and
   • whether there is therefore a need to deter other members of the profession from engaging in the same conduct by signalling that adverse consequences will follow such conduct.
4. In Honey at [42]-[45], the Tribunal discussed the difference between the determinations of suspension and cancellation:

The major difference between a suspension and cancellation is that once the doctor's registration is cancelled, he must reapply after the period specified. He is not guaranteed that he will be so re-registered. He must satisfy the Board that registration is appropriate and that he fulfils the qualifications for general registration ...

Cancellation of registration sends a clear message of unsuitability to practice. Suspension may be thought to indicate confidence in the doctor's future ability to practice once the period of suspension is served.

There are some cases in which it is abundantly clear that deregistration is the only option available to protect the public from a miscreant doctor.

This is apparent in situations in which the practitioner does not accept the inappropriateness of his conduct, or has been shown to be a serial offender.

1. Whilst the Tribunal may be assisted by submissions as to the appropriate sanction, and will give weight to joint submissions, it is ultimately in the discretion of the Tribunal as to the appropriate sanction in any given case.[10]
2. Determinations in other cases of similar or analogous conduct will provide useful guidance. Consistency and proportionality are important. But every case is different, with its own combination of facts and relevant factors, including the degree of seriousness of the conduct, the length of time the practitioner engaged in the conduct, the number of patients or others impacted by the conduct, and the circumstances involved.

1. In this case, general deterrence is important, and is served by the four month suspension we have imposed together with a reprimand, against the background of the fact that ZQO (who had no prior disciplinary history) has been out of practice for five years already, following her undertaking not to practice pending the conclusion of the Board's investigation and any decision from VCAT.
2. The suspension, and the background mentioned above also serves specific deterrence, although that factor has less importance in this case, in our view, because of the matters to ZQO's credit, which also indicate insight and remorse - her early admission of the conduct, her cooperation later with the investigation and in the VCAT proceedings, and the agreement made with the Board as to the facts, characterisation and determinations.
3. The fact that the Board did not seek cancellation of ZQO's registration (and nor do we consider it warranted), indicates some confidence in her capacity to return to practise once the period of suspension has ended, with some safeguards in place.
4. The conditions proposed are essentially those recommended in a 2022 report by Dr David Kelly to be in place for ZQO's return to nursing, at least initially.
5. In intent (and, we hope, in effect) they are protective - urine and hair drug screening for example, are almost standard precautions now where substance use disorder has spilled over into misappropriation or other workplace misuse of drugs, even where it is, as in this case, in remission.
6. Similarly, the restrictions on access to medications listed as 'opioid analgesic' in the Australian Medicines Handbook, unless prescribed or administered for her own use by her treating practitioners, protect ZQO from any opportunistic impulse, however unlikely now, until she has established that such restrictions are no longer warranted.
7. Attending treatment by a GP and a psychologist or psychiatrist at the frequency they recommend is similarly protective of ZQO in the context of a complex psychological history and some evident vulnerabilities.
8. The restriction on working hours (condition 6), to between 6.30am and 11pm, avoiding night shifts, is intended to ensure that ZQO works in shifts where there are others around, and principally in daylight hours.
9. We recognise that this is a limitation that would significantly impact on ZQO's employability and so discussed with the parties a shorter review period, of say six months, for this condition.
10. The Board suggested introducing some flexibility by the addition of the words 'until the Board approves otherwise'.[11] ZQO's representative agreed, and we have added those words.
11. The conditions also provide for six hours of mentoring to take place over six months. We recognise that ZQO will have supervision and some mentoring in her workplaces, but regard it as important to have this additional skilled guidance available from an Ahpra approved mentor, for any professional, personal, and ethical challenges that might arise.
12. Finally, a reprimand is a serious matter for a health practitioner. As the Board submitted: [12]

It tells the public, clients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.

[1] She had recently qualified as a registered nurse but had not yet started to work in that capacity.

[2] (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; ...

[3] We use the term 'anonymity order' to distinguish it from a proceeding suppression order under the Open Courts Act 2013 (Vic); and from pseudonym orders made under the inherent jurisdiction of the courts. See WEQ (a pseudonym) v Medical Board of Australia [2021] VSCA 343, discussing pseudonym orders made by VCAT, in particular footnote 11 of the decision, distinguishing an order which deidentifies a party from a proceeding suppression order.

[4] Section 80(1): The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, noting the observations of the Court of Appeal about that case in Kyriackou v Law Institute of Victoria Ltd [2014] VSCA 322, [26].

[6] ZQO substituted for the respondent's name and names of notifiers and staff involved in the investigation redacted.

[7] Some of the medication taken was, however, noted as 'patient's own', meaning dispensed by their own pharmacist, brought into hospital, and kept in the same cupboard, to be returned to them on discharge.

[8] See for example Van Lan Ha v Pharmacy Board of Victoria [2002] VSC 322, [97]; Medical Board of Australia v Jansz [2011] VCAT 1026, [358]-[373]; Craig v The Medical Board of South Australia [2001] SASC 169 at [41]; Nursing and Midwifery Board of Australia v Little [2020] VCAT 687.

[9] See for example Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 in relation to assessment of insight.

[10] Nursing and Midwifery Board of Australia v Little [2020] VCAT 687, [44]-[46], referring to Commonwealth of Australia v Director, Fair Work Building Inspectorate [2015] HCA 46; 258 CLR 482, at [48] and [49].

[11] Those words are in condition 4 to do with screening frequency.

[12] Referring to Medical Board of Australia v Rathnayake [2019] VCAT 1012, [32].